30 October 2001
Honourable members,
Today we reach yet another milestone in our quest to provide a better life and better health for all South Africans. Before us we have legislation which takes a further step towards realizing our people's constitutional and human rights - especially the rights of people with disability - and which promotes a full and comprehensive approach to health and health care.
I must emphasize from the outset that mental health is as important as physical health to the overall well-being of individuals, communities and societies. I view improved mental health as one of the central objectives of our work and I know this view is widely shared in the Department of Health.
It is most appropriate - and even fortunate -- that we are discussing this legislation at this point in time. It has taken over four years of consultation, drafting and redrafting to reach this stage, yet the timing is excellent. Through the advocacy of the World Health Organisation the year 2001 has been observed as a focus year for mental health and this aspect of health has received the highest international priority. By passing this legislation as 2001 draws to a close, we will capture for years to come a practical embodiment of the spirit and values that underpinned this focus on mental health.
Honourable members, you may recall that on the 7th April this year, South Africa joined countries around the globe in celebrating World Health Day with its theme of mental health and its message: "Stop exclusion - Dare to Care". Many of you will also remember how bells all over the country tolled at 12 noon on that day to help us to Ring out Hope for Mental Health.
In May I attended the World Health Assembly and participated in the Round Table Discussions dealing with mental health. Then, on the 4th of this month, the World Health Report for 2001 was released by the World Health Organisation. Yes, the theme for this year's report is, indeed, mental health.
This report, under the title "Mental Health: New Understanding, New Hope", puts mental health under the microscope. It concludes that, given the massive burden of suffering resulting from mental health problems and given the extent of our knowledge about preventing and treating mental illness, countries of the world have not done nearly enough. And, sadly, this is especially true of developing countries.
With regard to legislation, the report notes that nearly a quarter of member countries have no mental health legislation at all, and a further one fifth have legislation dating back over 40 years. Though our current legislation is "only" 28 years old, I know you will agree it is now way out of date and change is urgently needed. Fortunately I can confidently say that the Bill before us captures all the main recommendations of the World Health Report, in terms of service provision as well as human rights. This legislation indeed cements a truly memorable and remarkable year for the promotion of mental health in South Africa.
The primary objectives of this Bill are, firstly, to ensure that appropriate care, treatment and rehabilitation are provided at all levels of the health service. Our emphasis has changed fundamentally from the custodial approach of the past, to one that encourages the community care of people needing mental health services. We have taken the view that, wherever possible, mental health services should be integrated into general health care.
A second major objective is to safeguard the rights of people with mental disabilities. Honourable members, you may suggest that we already have a Constitution which does this and therefore we are merely duplicating law. However, if you examine each clause on human rights in the Bill, you will see how the basic constitutional framework is expanded upon and used to entrench specific rights of people with mental illness and intellectual disability. At the same time we are legislating the main principles of the United Nations General Assembly resolution of 1991 on the Protection of Persons with Mental Illness and the Improvement of Mental Health Care.
It is important to note that we are entrenching rights not only through the section dealing explicitly with patient rights, but also through special administrative procedures which must be followed when dealing with people who do not, or cannot, provide their consent to care.
From a rights perspective, this Bill is somewhat complex because we have to balance two sets of rights. On the one hand we have to ensure the protection of people with mental disabilities but we also have to protect the rights of the public, in instances where their safety may be compromised by a person with mental disability. Let me emphasize that the vast majority of people with mental illness are not aggressive and are not a danger to anyone. However, the law must deal with the exceptions and I do not wish to deny that some people with mental disability can and do become aggressive and dangerous. I believe the required balancing of rights is successfully achieved in this legislation.
Let me now outline some of the main differences between the existing Act and the Bill before us. In doing so I will try to illustrate why it has been necessary to draw up totally new legislation rather than merely introduce amendments.
Firstly, this Bill is termed the Mental Health Care Bill - in contrast to the current Mental Health Act. The reason for this is that there are many aspects of mental health that are not dealt with in this legislation. For example, the prevention of mental illness and promotion of mental health are not covered. Of course, this was also true of the existing Act which has, in our view, always been misnamed
Secondly, we have introduced a chapter on patient rights. I have talked about this already so I will not dwell on it. But I do need to make the point that, even today, people with mental illness are badly discriminated against, stigmatized and abused. This legislation is an essential element in our ongoing efforts to change attitudes towards mental illness.
Thirdly, this bill provides a new professional category, the "mental health care practitioner". We need to do this in order to make optimal use of all suitably qualified health personnel in South Africa. By demolishing some of the fences and distinctions between health professions, we can create much better access to mental health services - especially for the poor and those in rural areas.
Fourthly, we have moved responsibility for clinical decisions away from the judiciary to the clinicians. In doing this we have also made provision to set up Mental Health Review Boards that will protect patients against arbitrary or unnecessary committal and retention in institutions. Each Board will consist of between three and five people, including a mental health care practitioner, a person with knowledge of the law and person from the community.
Fifthly, the Bill introduces a 72-hour assessment period that must be utilized prior to involuntary committal. This can take place at a general hospital and will avoid a number of unnecessary admissions. It will also help overcome problems of stigmatisation.
Sixthly, provision is made for involuntary community care. This will go a long way to meeting one of the Bill's objectives - which is to provide care in the least restrictive environment, while at the same time ensuring that care is provided where a person needs treatment but is unable or unwilling to give consent.
The seventh major difference from the existing Act is the period for reviewing the continued hospitalization of involuntary patients, assisted patients, State patients and mentally ill prisoners. The new periods for review will be after the first six months and then every year following this. At present, in certain instances, the period between reviews can be as long as five years.
The difference between this new Bill and the Act that it replaces lies not only in what has been added, but also in what we have discarded. Some clauses have been excluded simply because they are redundant. More significantly, however, there are provisions that we have scrapped because they are blatantly unconstitutional. For example, the infamous section 66A -- which cloaked psychiatric hospitals in secrecy by virtually prohibiting media reporting on them -- has been removed. This does not mean that patient confidentiality can now be infringed upon, but rather that we recognise the right to information and believe that openness about the running of institutions will help to improve the situation for mentally disabled people.
Honourable members, at an international level this has been the year of advocacy for mental health. In South Africa I believe that we have more than played our part in helping to raise the issues and profile of mental health. But we still have a most significant step to take, a step that will change the lives of people with mental disabilities and help to improve our country's mental health status. It is our collective responsibility to pass this legislation and, in so doing, to advance human rights and better health care for our nation.
Dr Manto Tshabalala-Msimang
Minister of Health